Citation Nr: 0900298
Decision Date: 01/06/09 Archive Date: 01/14/09
DOCKET NO. 03-33 640 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUES
1. Whether new and material evidence to reopen a claim for
service connection for post-traumatic stress disorder (PTSD)
has been received.
2. Entitlement to service connection for PTSD.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. A. Rein, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1965 to
March 1969.
These matters come before the Board of Veterans' Appeals
(Board) on appeal of a March 2003 rating decision in which
the RO appears to have reopened the claim for service
connection for PTSD, but denied the claim for service
connection, on the merits. The veteran filed a notice of
disagreement (NOD) in July 2003, and the RO issued a
statement of the case (SOC) in September 2003. The veteran
filed a substantive appeal (via a VA Form 9, Appeal to Board
of Veterans' Appeals) in November 2003 and requested a
hearing before a member of the Board.
In July 2005, the RO issued a supplemental SOC (SSOC)
reflecting the continued denial of the claim.
In January 2007, an informal Decision Review Officer
conference was held, instead of a hearing. A report of that
informal conference is associated with the claims file.
In April 2007, the RO issued an additional supplemental SOC
(SSOC) reflecting the continued denial of the claim.
In his substantive appeal, the veteran requested a hearing
before a Veterans Law Judge (VLJ) of the Board at the RO
(Travel Board hearing). A Travel Board hearing was scheduled
for November 19, 2008. However, the veteran failed to appear
for the hearing, and his request will therefore be considered
withdrawn. 38 C.F.R. § 20.704(d) (2008).
The Board points out that regardless of what the RO has done,
the Board must address the question of whether new and
material evidence to reopen the claim has been received
because the issue goes to the Board's jurisdiction to reach
the underlying claim and adjudicate the claim on a de novo
basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.
1996). In other words, the Board is required to first
consider whether new and material evidence is presented
before the merits of a claim can be considered. See Jackson
v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly-
and, given the Board's favorable disposition of the petition
to reopen - the Board has characterized the appeal as
encompassing the two matters set forth on the title page.
FINDINGS OF FACT
1. All notification and development actions needed to fairly
adjudicate each claim on appeal have been accomplished.
2. In an April 1993 rating decision, the RO denied the
veteran's claim for service connection for a nervous
condition with PTSD; although the RO notified him of this
denial later that month, the veteran did not initiate an
appeal.
3. Evidence associated with the claims file since the April
1993 rating action is not cumulative or redundant of evidence
previously of record, and is so significant that it must be
considered in order to fairly decide the merits of the claim
4. Although the record includes a number of assessments and
diagnoses of PTSD, the weight of the competent, probative
evidence establishes that the veteran does not meet the
diagnostic criteria for PTSD.
CONCLUSION OF LAW
1. The April 1993 RO decision that denied the veteran's
claim for service connection for a nervous condition with
PTSD is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R.
§§ 3.104, 20.302, 20.1103 (2008).
2. Since the April 1993 RO decision, new and material
evidence has been received; hence, the requirements to reopen
the claim for service connection for PTSD have been met. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (as in
effect prior to August 29, 2001).
3. The criteria for service connection for PTSD are not met.
38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a)
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2008)) includes enhanced duties to notify
and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
Notice requirements under the VCAA essentially require VA to
notify a claimant of any evidence that is necessary to
substantiate the claim(s), as well as the evidence that VA
will attempt to obtain and which evidence he or she is
responsible for providing. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (addressing the duties
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).
As delineated in Pelegrini v. Principi, 18 Vet. App. 112
(2004), after a substantially complete application for
benefits is received, proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim(s); (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in his or her possession that pertains to the
claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
The Board notes that, effective May 30, 2008, 38 C.F.R. §
3.159 has been revised, in part. See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008). Notably, the final rule removes the
third sentence of 38 C.F.R. § 3.159(b)(1), which had stated
that VA will request that a claimant provide any pertinent
evidence in his or her possession.
VA's notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Specific to requests to reopen, the veteran must
be notified of both the reopening criteria and the criteria
for establishing the underlying claim for service connection.
See Kent v. Nicholson, 20 Vet. App. 1 (2006).
VCAA-compliant notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case, the
RO). Id.; see also Pelegrini, 18 Vet. App. at 112. See also
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003).
In view of the Board's favorable disposition of the veteran's
petition to reopen, the Board finds that all notification and
development action needed to render a fair decision on this
aspect of the appeal has been accomplished.
As regards the reopened claim for service connection for
PTSD, on the merits, the Board notes that, in an August 2005
post-rating letter, the RO provided notice to the veteran
regarding what information and evidence was needed to
substantiate the underlying claim for service connection, as
well as what information and evidence must be submitted by
the veteran, what information and evidence would be obtained
by VA, and the need for the veteran to advise VA of and to
submit any further evidence that is relevant to the claim.
After issuance of the August 2005 letter, and opportunity for
the veteran to respond, the April 2007 supplemental SOC
(SSOC) reflects readjudication of the claim. Hence, the
veteran is not shown to be prejudiced by the timing of the
notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543
(2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376
(2006) (the issuance of a fully compliant VCAA notification
followed by readjudication of the claim, such as in an SOC or
SSOC, is sufficient to cure a timing defect).
Regarding the Dingess/Hartman notice requirements, the RO
provided the veteran information as to the assignment of
disability ratings or effective dates in a March 2006 letter.
Although this notice was provided after the rating decision
on appeal, the Board finds that that the timing of such
notice is not shown to prejudice the veteran. As the claim
for service connection will be denied on the merits, no
disability rating or effective date is being, or is to be,
assigned; accordingly, there is no possibility of prejudice
to the veteran under the notice requirements of
Dingess/Hartman.
The record also reflects that VA has made reasonable efforts
to obtain or to assist in obtaining all relevant records
pertinent to the matters on appeal. Pertinent objective
evidence associated with the claims file consists of the
veteran's service medical and personnel records and VA
outpatient treatment records. Also of record and considered
in connection with the appeal are various written statements
provided by the veteran and by his representative, on his
behalf.
The record also reflects that VA has made reasonable efforts
to obtain or to assist in obtaining all relevant records
pertinent to the matter on appeal. Pertinent medical
evidence associated with the claims file consists of the
veteran's service treatment records, VA and Vet Center
treatment records, and the reports of March 1993, April 2003,
and January 2007 VA examinations. Also of record and
considered in connection with the claim are various
statements provided by the veteran or by his representative,
on his behalf.
In summary, the duties imposed by the VCAA have been
considered and satisfied. Through various notices of the RO,
the veteran has been notified and made aware of the evidence
needed to substantiate the underlying claim for service
connection for an acquired psychiatric condition, claimed as
depression, the avenues through which he might obtain such
evidence, and the allocation of responsibilities between
himself and VA in obtaining such evidence. There is no
additional notice that should be provided, nor is there any
indication that there is additional existing evidence to
obtain or development required to create any additional
evidence to be considered in connection with the reopened
claim for service connection for an acquired psychiatric
disorder, claimed as depression, on the merits. Consequently,
any error in the sequence of events or content of the notice
is not shown to prejudice the veteran or to have any effect
on the appeal. Any such error is deemed harmless and does
not preclude appellate consideration of the matter herein
decided, at this juncture. See Mayfield v. Nicholson, 20
Vet. App. 537, 543 (2006) (rejecting the argument that the
Board lacks authority to consider harmless error). See also
ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998).
II. Analysis
A. Petition to Reopen
As indicated above, the veteran's claim for service
connection for PTSD had previously been considered and denied
in an April 1993 rating decision. As the veteran did not
appeal that decision, it is final based on the evidence then
of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302,
20.1103. The veteran sought to reopen his claim for service
connection for PTSD in June 2001.
Under pertinent legal authority, VA may reopen and review a
claim that has been previously denied if new and material
evidence is submitted by or on behalf of the veteran. 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v.
West, 155 F.3rd 1356 (Fed. Cir. 1998).
Under the law in effect for applications to reopen filed
prior to August 29, 2001, 38 C.F.R. § 3.156(a) provides that
"new and material evidence" is evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. [Parenthetically, the Board
notes the regulations implementing the VCAA include a
revision of 38 C.F.R. § 3.156. However, that revision
applies only to claims filed on and after August 29, 2001.
See 38 C.F.R. § 3.156(a), as in effect on and after August
29, 2001). Given the November 2000 date of the claim
culminating in the instant appeal, the Board will apply the
version of 38 C.F.R. § 3.156(a) in effect prior to August 29,
2001.]
In determining whether new and material evidence has been
received, VA must initially decide whether evidence received
since the prior final denial is, in fact, new. This analysis
is undertaken by comparing newly-received evidence with the
evidence previously of record. After evidence is determined
to be new, the next question is whether it is material.
The provisions of 38 U.S.C.A. § 5108 require a review of all
evidence received from a claimant since the last final denial
on any basis to determine whether a claim must be reopened.
See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the
last final denial of the claim was in April 1993.
Furthermore, for purposes of the "new and material" analysis,
the credibility of the evidence is presumed. Justus v.
Principi, 3 Vet. App. 510, 512-513 (1992).
At the time of the 1993 rating decision, the evidence
consisted of the veteran's service treatment records, which
were negative for findings, complaints, or assessment of any
psychiatric disability, a January 1970 VA examination report
that found a normal psychiatric system and a March 1993 VA
examination report that diagnosed no psychiatric illness
present. Thus, at the time of the time of the 1993 decision,
there was no medical evidence of a current PTSD diagnosis and
in addition, the veteran had provided no information, whether
directly or in medical records, as to his claimed in service
stressors.
Evidence added to the record since the final, unappealed
April 1993 rating action includes Morgantown Vet Center and
VA treatment records reflecting that the veteran was
diagnosed with PTSD and the veteran's description of a fellow
service member committing suicide in Vietnam. This evidence
is new in that it was not previously before agency decision
makers at the time of the April 1993 decision, and is not
cumulative or duplicative of evidence previously considered.
The Board also finds that this evidence is "material" for the
purpose of reopening the claim, as it reflects a diagnosis of
PTSD, of which there previously was none, and information as
to an alleged stressor. No such evidence was of record at
the time of the prior denial. The Board emphasizes that,
under the pre-August 29, 2001 standard, to reopen a claim for
service connection, the additional evidence need only, at a
minimum, contribute to a more complete picture of the
circumstances surrounding the origin of a veteran's injury or
disability, even where it will not eventually convince VA to
alter its decision. See Hodge, 155 F.3d at 1363; 38 C.F.R. §
3.156. The Board thus finds that this new evidence is so
significant that it must be considered to fairly decide the
merits of the claim for service connection for PTSD.
Under these circumstances, the Board concludes that the
criteria for reopening the claim for service connection for
PTSD are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
B. Service Connection for PTSD
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. §
4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the in-service stressor occurred.
38 C.F.R. § 3.304(f) (2008).
The first requirement for service connection for PTSD is a
medical diagnosis of the condition. Diagnoses of PTSD must
be rendered in accordance with the diagnostic criteria for
the condition set forth in Fourth Edition of the American
Psychiatric Association's Diagnostic and Statistical Manual
of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting
that VA has adopted the nomenclature of the DSM-IV) (2008).
Considering the claim for service connection in light of the
above, the Board finds that the claim must be denied because
the preponderance of the evidence establishes that the first
criterion for a grant of service connection for PTSD is not
met.
The veteran asserts that he has PTSD that is related to
various stressors in service. In various records he has
reported that a close friend, and fellow service member in
his unit, committed suicide and that he was shot at on two
separate occasions while in Vietnam.
The pertinent evidence of record includes the veteran's
service treatment records, reflects no findings or diagnosis
of PTSD.
A March 1993 VA examination report reflects that the veteran
complained of recurrent nightmares around the anniversary of
the TET offensive. He reported having no combat exposure.
On mental status examination, the veteran was superficially
cooperative and seemed at times evasive. He made some vague
allusions to past feelings of suicide. The examiner commented
that the veteran mentioned these feelings not with any
conviction or intensity, but rather almost in passing or as
an afterthought. He evidenced no thought processing
disturbances, no hallucinations or delusions, and his memory
was intact. The impression was no psychiatric illness.
Morgantown Vet Center treatment records dated from November
2000 to June 2001 reflect that the veteran was assessed with
PTSD, severe, chronic. A January 2001 reflects that the
veteran reported that one friend was killed in Vietnam and
another friend in his unit had committed suicide after
receiving a "dear John letter." He stated he had frequent
nightmares, problems sleeping, and isolation. He works full
time. He also stated he was easily startled by loud sounds,
feels a strong need to control everything in his life, and
can not stay still for very long. The counselor's assessment
was that the veteran had all the symptoms of PTSD.
A February 2001 VA psychological assessment shows that the
veteran experienced many stressful event such as multiple
motor vehicle accidents, natural disasters, divorce, was a
victim of multiple assaults, and a friend's death by suicide
in addition to his military experiences. The examiner
concluded that psychological testing and interview
information was supportive of a diagnosis of PTSD and major
depression, although a more complete assessment was
recommended for formal diagnostic purposes.
VA inpatient treatment records dated from April 2001 to June
2001 reflect that the veteran stated he was more and more
isolated, he trusted no one, he was apathetic and did not
care, he had thoughts of hurting himself, but no intent. The
initial impression was PTSD.
A March 2003 VA outpatient record reflects that the veteran
reported a lot of stressors in his life to include spending
the last six months in jail, marital problems, and financial
issues. The examiner noted that the veteran was neat and
clean, he had a little pressured speech, he seemed a little
bit anxious, he was not psychotic or delusional, the veteran
denied auditory or visual hallucination, he had fleeting
thoughts of self harm. The diagnoses were PTSD and major
depressive disorder.
In the report of an April 2003 VA examination, the examiner
noted a review of the past VA examination and the last two
years of progress notes at VA. The examiner reported that
when they began the interview the veteran became tremulous,
had a stammer, and had facial expressions of crying, but no
tears. He was extremely tangential and generally avoided
direct questions. He appeared to fain distress. He spoke of
his military stressors, but spent more time and had more
emotion in talking about his current legal difficulties. He
referred to notes as he spoke about military stressors. The
veteran's presentation was so unusual that the interview was
terminated after about forty-five minutes. The veteran
stated that traumatic events in Vietnam involved a soldier
who suicided after receiving a "dear John letter," and that
the veteran began having nightmares in 1991 or 1993 where
this soldier talks to him. The veteran spoke of the death of
a friend killed in combat, about being shot at, and being
near an ammunition dump when it was blown up. The examiner
noted that the veteran was quite animated when talking at
length about his current financial and legal difficulties.
He was clearly distressed about how he was going to meet his
parole conditions. The veteran agreed to undergo
psychological testing; however, the examiner reported that
the veteran's MMPI-2S profile was invalid and unreliable due
to symptoms over reporting. The examiner found that
meaningful interpretations were limited to secondary gain.
On mental examination, the veteran's self-report about combat
stressors consisted of scattered anecdotes with little
detail. At times, his speech was so tangential that it was
difficult to follow. This is in marked contrast to his
presentation as described during the March 1993 interview.
The veteran referred to having nightmares and survivor guilt
as flashbacks, but he gave little detail. The examiner
summarized her finding stating that this is a veteran who had
an unusual presentation in the examination. The nexus
between events in Vietnam and his current problems were
ambiguous. He did not describe PTSD symptoms in a direct and
reliable manner. She furthered that the veteran is evidently
in legal and financial trouble. It is possible that he is
seeking readmission to avoid any consequences that may come
from failing to meet his parole requirements. In reviewing
his progress notes from therapy at the VA over the last two
years, discrepancies were seen between notes and the
veteran's self report during this interview. The examiner
assessed antisocial personality disorder traits.
An August 2003 VA inpatient discharge summary reflects that
the veteran was admitted after stating he was ready to kill
himself. He felt overwhelmed with depression and got more
extremely upset when he got turned down for a diagnosis of
PTSD and compensation in April. He was diagnosed with major
depression, nicotine abuse, and history of PTSD.
A December 2005 VA PTSD program note indicates that the
veteran's referral packet for the PTSD program was reviewed
by the PTSD team. They determined that the severity of the
veteran's reported stressors did not warrant the veteran to
be reinstated in the PTSD program and that he did not have a
clear diagnosis for PTSD.
In the report of a January 2007 VA examination, the examiner
acknowledged review of the claims file and discussed the
veteran's medical record, to include the prior VA examination
reports (as discussed above), and VA inpatient and outpatient
treatment records since 2001. The veteran reported getting
into a short firefight with Viet Cong who were also out for a
good time at some Saigon establishment. He also reiterated
prior assertions of exposure to enemy fire. The veteran
reported that he was involved in corruption and black market
criminal activity while in Vietnam. He also stated that one
night when he was drunk, a friend committed suicide. Another
soldier told him, and he was later confronted by CID agents
who accused the veteran of contributing to his friend's
suicide. The examiner noted that the veteran was married in
1979 and divorced in 1986, that he has two sons; that he
plays cards with friends about twice per week, and, that,
during the day he cares for a lady, and he eats out
occasionally. He stated he has had a few fights.
The veteran presented with a slumped posture and looking
depressed. He was vague in his responses on mental status
examination and provided contradictory accounts about his
level of functioning. His affects was constricted, mood was
depressed, orientation was intact, thought process was
evasive and tangentially, he understands outcome of behavior,
has sleep impairment, reported auditory hallucinations, and
homicidal and suicidal thoughts. He denied panic attacks,
had good impulse control, no episodes of violence, and his
memory was normal. The veteran reported a variety of chronic
symptoms to include dreams, intrusive recollections,
avoidance behavior, and difficulty falling or staying asleep.
The examiner noted that the RO had verified the death of the
veteran's friend, the primary stressor. The examiner opined
that the veteran did not meet the DSM-IV criteria for a
diagnosis of PTSD. The diagnoses were depressive disorder,
not otherwise specified; and adult antisocial behavior. The
examiner discussed that the MMPI2 indicated over-reporting of
symptoms and that the veteran's self-report is confusing,
self-contradictory, and at times evasive. The examiner
commented that while the veteran probably experiences some
depression or guilt related at least in part to the suicide
of his friend in Vietnam, he doe not meet the DSM-IV criteria
for a diagnosis of PTSD. This is due to several reasons.
One, he describes his symptoms in a flat manner without
apparent distress. Two, his descriptions of multiple war
traumas is unfocused and incorporates descriptions of minor
events, suggesting that the veteran is reporting as many
possible traumas as he can for secondary gain. Three, his
MMPI2 results suggest that the veteran exaggerates symptoms.
Four, the veteran is self-contradictory at times. Five, the
correspondence between the verified stressor and the
veteran's reported PTSD symptoms is tenuous. Consequently,
in the examiner's opinion, the preponderance of the evidence
is more consistent with symptoms exaggeration than it is with
PTSD.
As indicated above, the medical evidence of record contains
conflicting evidence on the question of whether the veteran
actually meets the diagnostic criteria for PTSD.
It is the responsibility of the Board to assess the
credibility and weight to be given the evidence. See Hayes
v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v.
Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative
value of medical evidence is based on the physician's
knowledge and skill in analyzing the data, and the medical
conclusion the physician reaches; as is true of any evidence,
the credibility and weight to be attached to medical opinions
are within the province of the Board. See Guerrieri v.
Brown, 4 Vet. App. 467, 470-471 (1993).
When reviewing such medical opinions, the Board may
appropriately favor the opinion of one competent medical
authority over another. See Owens v. Brown, 7 Vet. App. 429,
433 (1995). However, the Board may not reject medical
opinions based on its own medical judgment. Obert v. Brown, 5
Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet.
App. 171 (1991). In assessing medical opinions, the failure
of the physician to provide a basis for his opinion goes to
the weight or credibility of the evidence in the adjudication
of the merits. See Hernandez-Toyens v. West, 11 Vet. App.
379, 382 (1998). Other factors for assessing the probative
value of a medical opinion are the physician's access to the
claims file and the thoroughness and detail of the opinion.
See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).
The Board acknowledges that records of VA and Vet Center
treatment all indicate that the veteran has a diagnosis of
PTSD, however, such diagnoses are of limited probative value.
Here, none of the medical records that suggest that the
veteran has PTSD includes any rationale for any such
diagnosis, to include any explanation of how the diagnostic
criteria are met, which stressor(s) were relied upon as a
basis for the diagnosis, or discussion of the evidence
considered. In this regard, none of these records reflects
that the claims file was reviewed or that pertinent medical
evidence of the veteran's history of treatment were
considered and prior examinations. In addition, while some
of the VA treatment and Vet Center treatment records includes
the veteran's description of his in-service stressor, none of
the records attribute the diagnosis of PTSD to the verified
stressor of his friend who committed suicide in service.
By contrast, the March 1993, April 2003 and January 2007
opinions, by VA examiners, were each clearly based upon
examination of the veteran, consideration of his complete
documented medical and military history, to include the in-
service stressor, and full consideration of the DSM-IV
criteria for establishing PTSD.
Furthermore, the January 2007 VA examiner described the
veteran's complaints of PTSD as vague and unreliable, which
is supported by the same conclusion reached by the April 2003
VA examiner. Moreover, the April 2003 and January 2007 VA
examiners each indicated that they thought the veteran was
exaggerating his symptoms purposely for secondary gain. As
such, the Board finds that these opinions-which,
collectively, weigh against the claim-are more probative of
the fundamental question of whether the veteran, in fact,
suffers from service-related PTSD.
The Board emphasizes that Congress has specifically limited
entitlement to service connection for disease or injury to
cases where such incidents have resulted in disability. See
38 U.S.C.A. § 1131; see also 38 C.F.R. § 3.310. Thus, where,
as here, the competent and persuasive medical evidence
establishes that the veteran does not have the claimed
disability upon which to predicate a grant of service
connection, there can be no valid claim for service
connection. See Gilpin v. West, 155 F. 3d 1353 (Fed. Cir.
1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
As in this case, the first criterion for a grant of service
connection for PTSD are not met, discussion of the remaining
criteria of 38 C.F.R. § 3.304(f) is unnecessary.
In addition to the medical evidence, in adjudicating this
claim, the Board has considered the veteran's and his
representative's written assertions; however, none of this
evidence provides a basis for allowance of the claim. As the
veteran and his representative are not shown to be other than
laypersons without the appropriate medical training and
expertise, neither is competent to render a probative opinion
on a medical matter, such as whether the veteran's symptoms
meet the diagnostic criteria for PTSD. See, e.g., Bostain v.
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown,
10 Vet. App. 183, 186 (1997) ("a layperson is generally not
capable of opining on matters requiring medical knowledge").
Hence, the lay assertions in this regard have no probative
value.
Under these circumstances, the Board finds that the claim for
service connection for PTSD must be denied. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, as the preponderance
of the evidence is against the claim, that doctrine is not
applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
As new and material evidence to reopen the claim for service
connection for PTSD has been received, to this extent, the
appeal is granted.
Service connection for PTSD is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs